Anti-terrorism

Protecting Magna Carta

On Wednesday when the indirect incitement clause in the anti-terrorist bill passed by only one vote - the smallest majority since Labour came to power in 1997 - defeat loomed on an even more important clause. David Winnick, a Labour backbencher, was waiting to move his amendment, which would have reduced the length of time that suspect terrorists can be held without charge or trial from 90 to 28 days. It looked certain of victory. But he withdrew his amendment when the home secretary signalled he would be ready to compromise in all party talks early next week. But just one day later Tony Blair remained unmoved. Speaking in Manchester on Thursday night he declared: "If the police say they need this power to detain terrorist suspects for 90 days then they should have this power." So much for the government's conciliatory approach.

The issue which faces parliament could not be more fundamental. As civil rights lawyer Geoffrey Robertson has noted, liberty has a much longer history than Labour's incorporation of the European convention on human rights into British law - "it was forged in the crucible of a civil war that cost one Englishman in 10 his life, culminating in the trial for tyranny of a head of state who intimidated judges and refused political and religious freedom".

In fact, the liberty which the bill proposes to remove dates back to 1215 and Magna Carta. There is no liberty more fundamental than the right not to be imprisoned without trial. The current 14 days under which suspect terrorists can be held was only introduced two years ago. Before then, it was only seven, a length that was applied throughout the height of the IRA terrorist campaign in the 1970s and 1980s. To be held for 14 days as a suspect terrorist can be traumatic enough - remember a majority will be found to be innocent - but to be held for 90 days risks losing innocent people their jobs, homes and friends. The clause strikes at the heart of habeas corpus, the right of a citizen to be charged or freed.

What we are watching is not a debate about law, but about politics. After the two successive bombing attacks in London in July, ministers felt they had to be seen to respond for fear of being seen to be complacent should a third attack occur. So although there are already 200 pieces of anti-terrorism legislation on the statute book, the government drew up its fourth terrorist bill in five years. Ideally, as Lord Carlile, the independent watchdog on anti-terrorist legislation, has argued, the government should have applied the new scrutiny procedure to its bill. This would have allowed expert witnesses and written submissions to be submitted to a cross-party scrutiny committee pre-empting the current political posturing. The scrutiny committee which examined the mental health bill heard 124 witness and read 450 submissions.

The police have a right to request an extension to the time they hold suspect terrorists. Contrary to the prime minister's assertions, however, there is no duty on parliament to concede to it. As we have noted before, there are some arguments on the police side. Modern terrorist trials can involve many weeks of work wading through thousands of hours of CCTV footage, decoding hundreds of computer discs and contacting overseas security services. But this is not as new as they assert. Major fraud and pornography trials have faced similar challenges. Lord Goldsmith, the attorney general, is reported to be opposed to the move. Lord Carlile has expressed doubts that the new powers are lawful. What is certain is that holding even a small number of suspects without charge or trial for 90 days will only further the terrorists' cause. It will widen mistrust within the Muslim community and create even more barriers to collecting intelligence. Parliament should insist on sticking to the current 14 days.